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HCCC 356/2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 356 OF 2016
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| Date: |
4 September 2017 at 9.55 am |
| Present: |
Mr Philip Ross, on fiat, for HKSAR
Ms Diane M Crebbin, instructed by Cheung & Liu, for the accused
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| Offence: |
(1) Possession of a dangerous drug (管有危險藥物)
(2) Trafficking in a dangerous drug (販運危險藥物)
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT:
The defendant has pleaded guilty to one count of possession of a dangerous drug, namely 1.51 grammes of methamphetamine hydrochloride and one count of trafficking in a dangerous drug, namely 21.1 grammes of a crystalline solid containing 21 grammes of methamphetamine hydrochloride.
The facts relating to the 1st count are that, on 19 December 2015, the defendant was seen outside the Long Ping Community Hall of the District Office, acting suspiciously. He was therefore stopped and upon a search by the police officer, the drug in Count 1 was found on him.
Upon being arrested and cautioned, the defendant admitted that he had just bought the drug for $800.
As far as Count 2 is concerned, on 7 January 2016, whilst the defendant was on bail for the offence in Count 1, he was arrested outside his home and police officers, using keys found on him, opened the door to his premises. Inside the room, the police officers found an electronic scale, a plastic bag containing a total of 24 plastic bags which were found to contain the drug which is the subject matter of the 2nd count.
The estimated market retail value of the drugs seized was in the region of HK$6,478.
The defendant is aged 26 and has two previous convictions, but not referable to drugs. He was born in Hong Kong and lived with his family in Yuen Long. According to Ms Crebbin, who has mitigated on his behalf, the defendant was working as a car salesman, earning about $8,000 a month. He had no responsibilities, that is, he had no financial obligations to his parents and so the salary he was earning was sufficient for him. However, in late 2015, Ms Crebbin submitted, he encountered some very bad peers who then introduced him to ‘Ice’ and then persuaded him to package the ‘Ice’ to sell.
The defendant is aged 26 and he has got only himself to blame. It is very lucky for the defendant that he has supportive parents and I am informed that they have stood behind their son despite what he has done and will aid in his rehabilitation. I am urged to accept that the defendant is remorseful as expressed in his letter and that he will use the time that he will be spending in prison to further better himself by studying.
As for the sentencing guidelines, the Court of Appeal, as Ms Crebbin submitted, has laid down guidelines for trafficking in methamphetamine hydrochloride initially in Ching Kwok Hung in 1991 and subsequently revised by the case of Tam Yi Chun [2014] 3 HKLRD 691. The Court of Appeal said that for trafficking in between 10 to 70 grammes of methamphetamine hydrochloride, the recommended sentence will be between 7 to 11 years’ imprisonment as a starting point.
In this case, I do accept that the defendant is remorseful and, hopefully, with the assistance of his parents, he will turn over a new leaf.
In the 1st count of possession of a dangerous drug, I determine that an appropriate starting point would be 18 months’ imprisonment. Giving the defendant the full one-third discount, he is sentenced to 12 months’ imprisonment.
As for the 2nd count, I determine that a reasonable starting point in the circumstances would be 7½ years’ imprisonment, and taking one-third off, the defendant is sentenced to 5 years’ imprisonment.
Next, I have to consider whether the sentence should be consecutive or concurrent to the 1st count. As Ms Crebbin properly recognised, the fact that the 2nd count was committed whilst the defendant was on bail in relation to the 1st count, is an aggravating factor and it would be normal for the court to add a further length of sentence to the 5 years’ imprisonment because of that aggravating factor.
I will not do so in this case, but I will make the 5 years’ imprisonment consecutive to the 12 months’ imprisonment in the 1st count. Also, the other factor is that the 2nd count was committed about a month after the 1st count, so it is not an appropriate case for a concurrent sentence.
So 5 years for the 2nd count and 1 year for the 1st count, makes a total of 6 years’ imprisonment.
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